Monday, 14 June 2010

Article on Right to Individual Petition

Astrid Kjeldgaard-Pedersen of the University of Aarhus has just posted 'The Evolution of the Right of Individuals to Seise the European Court of Human Rights' (forthcoming in the Journal of the History of International Law) on SSRN. This is the abstract:

In at least two ways the year 2009 was a milestone for the European Court of Human Rights (ECtHR, the Court). On the bright side, the Court could celebrate its 50th anniversary and its continuous role as principal promoter of human rights in the 47 Member States of the Council of Europe (CoE, the Council). However, 2009 was also the year in which the number of pending cases before the Court passed the disturbing 100 000 benchmark.

Paradoxically, the main reason for both the Court’s success and its current crisis is the right of petition of individuals. The present article contains a detailed inquiry into the coming into existence of this central feature of the control machinery of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, the Convention) that was labeled a breakthrough in the field of human rights as well as in general international law.

Parts I-IV of the article provide a chronological account of the drafting processes leading up to the adoption of the ECHR in 1950, and Protocol 9 in 1990. In analysis of reports and meeting minutes from a number of organs set up in the realm of the Council, the study concentrates on two main questions: Why did the original Convention end up excluding individuals from the proceedings of the ECtHR? And what changed in the time between 1950 and 1990 to facilitate the individual’s right to seise the Court independently?

As parts I-IV reveal, the development of the ECHR control machinery provides an interesting example of the interplay – or rather lack of same – between the practical decision-making among the parties to a convention and international legal theory. Part V reflects on the extent to which the theoretical discussion on the position of individuals in international law influenced the evolution of the right of individuals to seise the ECtHR.